Sec. 392.303. UNFAIR OR UNCONSCIONABLE MEANS. (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices:
(1) seeking or obtaining a written statement or acknowledgment in any form that specifies that a consumer's obligation is one incurred for necessaries of life if the obligation was not incurred for those necessaries;
(2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest or incidental charge, fee, or expense is expressly authorized by the agreement creating the obligation or legally chargeable to the consumer; or
(3) collecting or attempting to collect an obligation under a check, draft, debit payment, or credit card payment, if:
(A) the check or draft was dishonored or the debit payment or credit card payment was refused because the check or draft was not drawn or the payment was not made by a person authorized to use the applicable account;
(B) the debt collector has received written notice from a person authorized to use the account that the check, draft, or payment was unauthorized; and
(C) the person authorized to use the account has filed a report concerning the unauthorized check, draft, or payment with a law enforcement agency, as defined by Article 59.01, Code of Criminal Procedure, and has provided the debt collector with a copy of the report.
(b) Notwithstanding Subsection (a)(2), a creditor may charge a reasonable reinstatement fee as consideration for renewal of a real property loan or contract of sale, after default, if the additional fee is included in a written contract executed at the time of renewal.
(c) Subsection (a)(3) does not prohibit a debt collector from collecting or attempting to collect an obligation under a check, draft, debit payment, or credit card payment if the debt collector has credible evidence, including a document, video recording, or witness statement, that the report filed with a law enforcement agency, as required by Subsection (a)(3)(C), is fraudulent and that the check, draft, or payment was authorized.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch. 505 (H.B. 628), Sec. 1, eff. September 1, 2005.
Notes of Decisions
McCaig Ex Rel. Est. of McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015).
· cites it 5× “Tex. Fin. Code § 392.303(a)(2) (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices: (2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest…”
Henning, Kenneth v. OneWest Bank FSB, 405 S.W.3d 950 (Tex. App. 2013).
“r may not use unfair or unconscionable means that employ the following practices: [[Image here]] (2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest or incidental charge, fee, or expense is expressly…”
Johnson v. Wells Fargo Bank, 999 F. Supp. 2d 919 (N.D. Tex. 2014).
“304(a)(19); (2) misrepresenting the character, extent, or amount of a consumer debt under Texas Finance Code § 392.304(a)(8); (3) attempting to collect charges incidental to the obligation under Texas Finance Code § 392.”
Trevino v. HSBC Mortg. Servs., Inc. (In re Trevino), 535 B.R. 110 (Bankr. S.D. Tex. 2015).
“The Trevinos Have Stated a Claim For Relief as to the March 20, 2013 Letter Pursuant to Tex. Fin. Code § 392.303(a)(2) The Trevinos further allege that the letter sent by HSBC on March 20, 2013 violated §§ 392.”
Diana Rucker v. Bank of Am., N.A., 806 F.3d 828 (5th Cir. 2015).
“” Tex. Fin.Code Ann. § 392.303(a)(2). On appeal, Rucker claims that BOA assessed excessive fees — totaling roughly $2,000 over seven years — but does not contest whether the DOT authorized BOA to assess such fees.”
Trevino v. HSBC Mortg. Servs., Inc. (In re Trevino), 533 B.R. 176 (Bankr. S.D. Tex. 2015).
“The Trevinos Have Stated a Claim For Relief as to the March 20, 2013 Letter Pursuant to Tex. Fin.Code § 392.303(a)(2) The Trevinos further allege that the letter sent by HSBC on March 20, 2013 violated §§ 392.”
Robinson v. Deutsche Bank Nat'l Trust Co. (N.D. Tex. 2019).
· cites it 5× “8 A Robinson alleges that defendants “failed to properly account for and acknowledge payments,” and “demanded Plaintiff pay one or more sums above the amounts provided by the Note and Deed of Trust,” in violation of Tex. Fin. Code Ann. §§ 392.303 (a)(2), 392.”
Ruiz v. Bank of Am., N.A. (N.D. Tex. 2020).
· cites it 4× “had the authority to do so”; (4) “Defendants did not violate Texas Finance Code § 392.303(a)(2) because they did not collect or attempt to collect improper interest or fees”; (5) “Defendants did not violate Texas Finance Code § 392.”
David McCaig v. Wells Fargo Bank (Texas), N (5th Cir. 2015).
· cites it 3× “Tex. Fin. Code § 392.303(a)(2) (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices: (2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest…”
— Tex. Fin. Code § 392.303(a) — 3 cases
— Tex. Fin. Code § 392.303(a)(2) — 16 cases
McCaig Ex Rel. Est. of McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015).
“Tex. Fin. Code § 392.303(a)(2) (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices: (2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest…”
Johnson v. Wells Fargo Bank, 999 F. Supp. 2d 919 (N.D. Tex. 2014).
“304(a)(19); (2) misrepresenting the character, extent, or amount of a consumer debt under Texas Finance Code § 392.304(a)(8); (3) attempting to collect charges incidental to the obligation under Texas Finance Code § 392.”
Trevino v. HSBC Mortg. Servs., Inc. (In re Trevino), 535 B.R. 110 (Bankr. S.D. Tex. 2015).
“The Trevinos Have Stated a Claim For Relief as to the March 20, 2013 Letter Pursuant to Tex. Fin. Code § 392.303(a)(2) The Trevinos further allege that the letter sent by HSBC on March 20, 2013 violated §§ 392.”
Diana Rucker v. Bank of Am., N.A., 806 F.3d 828 (5th Cir. 2015).
“” Tex. Fin.Code Ann. § 392.303(a)(2). On appeal, Rucker claims that BOA assessed excessive fees — totaling roughly $2,000 over seven years — but does not contest whether the DOT authorized BOA to assess such fees.”
— Tex. Fin. Code § 392.303(a)(3) — 1 case
— Tex. Fin. Code § 392.303(b) — 1 case
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